Citation Nr: 0016574
Decision Date: 06/22/00 Archive Date: 06/28/00
DOCKET NO. 99-01 751 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Eligibility for educational assistance under Title 38,
United States Code, Chapter 35.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
C. L. Krasinski, Counsel
INTRODUCTION
The veteran served on active duty from January 1948 to March
1949 and from August 1950 to November 1951. Service records
show that he was awarded the Purple Heart. He died in May
1998. During his lifetime, service connection was in effect
for trench foot as a residual of frozen feet which was
evaluated as 50 percent disabling. The appellant is the
widow of the veteran.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a September 1998 rating decision of
the Houston, Texas, Regional Office (RO).
Additional matter
At the time of the veteran's death, a claim for service
connection for emphysema, chronic bronchitis and chronic
obstructive pulmonary disease was pending. In an August 1999
statement, the appellant referred to the veteran's claim for
entitlement to service connection for smoking-related
disabilities. She stated that the RO had not yet decided the
veteran's claims. The appellant is informed that the United
States Court of Appeals for the Federal Circuit has held that
when a veteran dies, his claim dies with him. See Haines v.
West, 154 F.3d 1298 (Fed. Cir. 1998), cert. denied, 119 S.Ct.
1249 (1999); Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed.
Cir. 1996), cert. denied, 117 S. Ct. 2478 (1997).
It appears that the appellant may be raising a claim for
accrued benefits. The Board refers this matter to the RO for
appropriate action.
FINDINGS OF FACT
1. The veteran died in May 1998; the cause of the veteran's
death as shown on the death certificate was respiratory
insufficiency secondary to chronic obstructive lung disease
due to congestive heart failure secondary to cardiomyopathy
due to sepsis.
2. At the time of the veteran's death, service connection
was in effect for trench foot as a residual of frozen feet.
3. There is no competent medical evidence which demonstrates
that the chronic obstructive lung disease, congestive heart
failure, or cardiomyopathy was present in service or within
one year from service separation.
4. There is no competent medical evidence of record
demonstrating a nexus between the cause of the veteran's
death and his military service or his service-connected
disability.
5. The veteran did not die of a service-connected disability
and was not found to have been totally and permanently
disabled due to a service-connected disability at the time of
his death to establish entitlement to Dependent's Educational
Assistance under 38 U.S.C.A. Chapter 35.
CONCLUSIONS OF LAW
1. The claim for service connection for the cause of the
veteran's death is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
2. The claim for entitlement to educational benefits
pursuant to Title 38, United States Code, Chapter 35 is
without legal merit. 38 C.F.R. § 3.105(a) (1999); Sabonis v.
Brown, 6 Vet. App. 426 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Entitlement to Service Connection for the Cause of the
Veteran's Death
Pertinent Law and Regulations
Service connection - cause of death
The surviving spouse of a veteran who has died from a
service-connected disability or compensable disability may be
entitled to receive dependency and indemnity compensation.
38 U.S.C.A. § 1310 (West 1991). In order to establish
service connection for the cause of the veteran's death, the
evidence must show that a service-connected disability was
either the principal or a contributory cause of death. The
issue involved will be determined by exercise of sound
judgment, without recourse to speculation, after a careful
analysis has been made of all the facts and circumstances
surrounding the death of the veteran, including,
particularly, autopsy reports. 38 C.F.R. § 3.312 (1999).
The service-connected disability will be considered as the
principal (primary) cause of death when such disability,
singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically
related thereto. A contributory cause of death is inherently
one not related to the principal cause. In determining
whether the service-connected disability contributed to
death, it must be shown that it contributed substantially or
materially; that it combined to cause death; that it aided or
lent assistance to the production of death. It is not
sufficient to show that it casually shared in producing
death, but rather it must be shown that there was a causal
connection. 38 C.F.R. § 3.312.
Service-connected diseases or injuries involving active
processes affecting vital organs should receive careful
consideration as a contributory cause of death, the primary
cause being unrelated, from the viewpoint of whether there
were resulting debilitating effects and general impairment of
health to an extent that would render the person materially
less capable of resisting the effects of other disease or
injury primarily causing death. Where the service-connected
condition affects vital organs as distinguished from muscular
or skeletal functions and is evaluated as 100 percent
disabling, debilitation may be assumed. 38 C.F.R. § 3.312.
There are primary causes of death which by their very nature
are so overwhelming that eventual death can be anticipated
irrespective of coexisting conditions, but, even in such
cases, there is for consideration whether there may be a
reasonable basis for holding that a service-connected
condition was of such severity as to have a material
influence in accelerating death. In this situation, however,
it would not generally be reasonable to hold that a service-
connected condition accelerated death unless such condition
affected a vital organ and was of itself of a progressive or
debilitating nature. 38 C.F.R. § 3.312.
Service connection - in general
In order to establish service connection for a disability,
the facts, as shown by evidence, must demonstrate that a
disease or injury resulting in current disability was
incurred during service or, if pre-existing active service,
was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.303 (1999).
If a veteran served continuously for ninety (90) or more days
during a period of war and cardiovascular disease became
manifest to a degree of 10 percent or more within one year
from the date of the veteran's termination of such service,
that condition would be presumed to have been incurred in
service, even though there is no evidence of such disease
during the period of service. Such a presumption would be
rebuttable, however, by affirmative evidence to the contrary.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991
and Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999).
Service connection may also be granted for a disability
initially diagnosed after service when shown to be related to
service. 38 C.F.R. § 3.303(d) (1999).
A disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. 38 C.F.R. § 3.310 (1999).
Service connection - Tobacco-related claims
A precedential opinion by the VA General Counsel determined
that direct service connection of disability may be
established if the evidence establishes that injury or
disease resulted from tobacco use in line of duty in the
active military, naval, or air service. VAOPGCPREC 2-93
(January 1993). Another precedential opinion by the VA
General Counsel indicated, in essence, that secondary service
connection may be established, under the terms of 38 C.F.R. §
3.310(a), if a veteran's nicotine dependence, which arose in
service, and resulting tobacco use may be considered the
proximate cause of the disability or death which is the basis
of the claim. VAOPGCPREC 19-97 (May 1997).
The Internal Revenue Service Restructuring and Reform Act,
dated July 22, 1998 added 38 U.S.C. § 1103, which prohibits
service connection of death or disability on the basis that
it resulted from disease or injury attributable to the use of
tobacco products during the veteran's active service. The
Internal Revenue Service Restructuring and Reform Act does
not preclude service connection for disease or injury which
became manifest during service or during an applicable
presumptive period and is applicable to claims filed after
June 9, 1998.
Well-grounded claims
The threshold question that must be resolved is whether the
appellant has submitted a well-grounded claim for entitlement
to service connection for the cause of the veteran's death.
38 U.S.C.A. § 5107(a) (West 1991). Pursuant to 38 U.S.C.A.
§ 5107(a) (West 1991), a person who submits a claim for
benefits administered by the Secretary shall have the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded. A well-grounded claim is a plausible claim, one
that is meritorious on its own or capable of substantiation.
Robinette v. Brown, 8 Vet. App. 69, 73-74 (1995); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990); see Johnson v. Brown, 8
Vet. App. 423, 426-27 (1995) (applying well-grounded claim
requirement in context of service connection for cause of
veteran's death).
In order for a death claim to be well grounded, there must be
competent evidence of death; of incurrence or aggravation of
a fatal disease or injury in service in the form of lay or
medical evidence; and of a nexus between the in-service
injury or disease and the veteran's death in the form of
medical evidence. Caluza v. Brown, 7 Vet. App. 498 (1995);
Ramey v. Brown, 9 Vet. App. 40, 46 (1996), aff'd 120 F.3d
1239 (Fed. Cir. 1997).
Evidentiary assertions accompanying a claim must be accepted
as true for the purpose of determining whether the claim is
well grounded, unless the evidentiary assertion is inherently
incredible or the fact asserted is beyond the competence of
the person making the assertion. King v. Brown, 5 Vet. App.
19, 21 (1993).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993). Where the determinative
issue involves a question of medical diagnosis or causation,
only individuals possessing specialized medical training and
knowledge are competent to render such an opinion. Espiritu
v. Derwinski, 2 Vet. App. 492 (1992). Lay assertions of
medical causation will not suffice initially to establish a
plausible, well grounded claim, under 38 U.S.C.A. § 5107(a).
If no cognizable evidence is submitted to support a claim,
the claim cannot be well grounded. See Grottveit, supra.
Factual Background
The veteran sustained bilateral frostbite of the feet in
December 1950 while in action against the enemy in Korea.
Subsequently, three toes were amputated. In a March 1952
rating decision, service connection was granted for residuals
of frozen feet.
Service medical records are silent for complaints or
treatment of a lung or heart disorder. The service medical
records do not reflect a diagnosis of chronic obstructive
lung disease, congestive heart failure, or cardiomyopathy. A
November 1951 separation examination report indicates that
examination of the lungs, chest, and heart revealed no
significant abnormalities. A January 1952 chest X-ray
examination was normal.
A November 1983 treatment record from the P.P. Hospital
indicates that the veteran had chronic obstructive pulmonary
disease for some time. June 1988 treatment records from the
S.M. Hospital record reflect diagnoses of severe chronic
obstructive pulmonary disease with a recent exacerbation,
ischemic heart disease with early myopathy, and emphysema.
VA treatment records dated in February 1992 reflect diagnoses
of congestive heart failure, cardiomegaly, emphysema, and
chronic obstructive pulmonary disease. A June 1992 S.M.
Hospital record reflects a diagnosis of chronic obstructive
pulmonary disease, probable alcoholic cardiomyopathy with
congestive heart failure, tobacco addiction, alcoholism, and
caratoid arterial stenosis bilaterally. A May 1993
neurological consultation report indicates that the veteran
had cardiomyopathy probably secondary to the excessive
alcohol abuse and secondary congestive heart failure and
emphysema.
A March 1996 VA examination report reflects, in pertinent
part, a diagnosis of severe peripheral vascular disease with
aorto-femoral bypass, which the VA examiner, Dr. T., stated
bore no relationship to service. Also remarked upon were
continuous tobacco use without motivation to quit smoking;
alcohol abuse, in remission; and chronic obstructive
pulmonary disease, probably moderately symptomatic related,
to smoking. It was noted that the veteran smoked 30
cigarettes a day with a history of heavy smoking for 51
years.
In a March 1998 statement, the veteran indicated that he
began to smoke when he was in service when he was
approximately 20 years old. He stated that he became
addicted to smoking on active duty.
A May 1998 death certificate indicates that the immediate
cause of death was respiratory insufficiency secondary to
chronic obstructive lung disease due to congestive heart
failure secondary to cardiomyopathy due to sepsis. Another
significant condition which contributed to death but was not
resulting in the underlying cause was cerebral
arteriosclerosis. An autopsy was not performed. It was
noted that tobacco contributed to the veteran's death.
The appellant's application VA death benefits was received by
the RO on July 20, 1998.
In a December 1998 statement, the appellant stated, in
essence, that the veteran's service-connected disability led
to circulatory problems which led to heart failure. She
indicated that the veteran had always told her that his cold-
related problems had put him in great discomfort and his
blood "did not seem to flow properly". She indicated that
his records of treatment should establish this and the recent
medical evidence links the cold weather problems to the
problems that caused the veteran's death. The appellant
indicated that one of the VA physicians said that circulatory
problems were one of the most common problems caused by cold
weather.
In a March 1999 medical opinion, Dr. T. reviewed the
veteran's claims folder and indicated that the veteran died
of complications of chronic obstructive pulmonary disease
secondary to smoking. Dr. T. indicated that the veteran also
had cardiomyopathy and congestive heart failure. He stated
that there was no relationship between the cause of death and
frostbite of the feet in service and even if the veteran did
have decreased circulation in his injured service-connected
leg, it would not be related to his death which was due to
respiratory failure, congestive heart failure, chronic
obstructive pulmonary disease, chronic bronchitis, and a
history of smoking since the 1950's.
In an August 1999 statement, the appellant stated that the
veteran's smoking-related disabilities along with his
frostbite problems were sufficient to establish service
connection for the veteran's death. She asserted that it was
clearly established that the veteran's frostbite damaged the
veteran's blood vessels and this led to his overall
circulatory problems along with his heavy smoking.
Analysis
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well-grounded claim
under 38 U.S.C.A. § 5107(a). As discussed above, in order
for a claim for service connection for the cause of the
veteran's death to be well grounded, there must be competent
evidence of the veteran's death; evidence of a service-
connected disability; and medical evidence providing a nexus
between the veteran's death and service or a service-
connected disability. See 38 C.F.R. § 3.312; See also Caluza
v. Brown, 7 Vet. App. 498, 506 (1995) and Ramey v. Brown, 9
Vet. App. 40, 46 (1996).
In this case, there is evidence of the veteran's death, in
the form of a certificate of death. There is also evidence
of a service-connected disability. At the time of the
veteran's death, service connection was in effect for trench
foot as a residual of frozen feet. The focus of the Board's
inquiry will therefore be on the remaining prong of the
Caluza/Ramey analysis, medical nexus.
The appellant asserts that the veteran's service-connected
residuals of frozen feet caused the veteran's cardiovascular
and circulation problems and this led to the veteran's death.
She also argues, in essence, that the veteran's death was due
to the veteran's heavy smoking and this is related to his
period of service. In addition, she contends that a
combination of the service-connected frozen feet residuals
and the smoking which she believes is related to service led
to his death.
With respect to the first contention, the Board finds that
the appellant has not submitted competent medical evidence
which establishes that the veteran's service-connected
residuals of frozen feet was a principal or contributory
cause of death. There is no indication in the medical
records that the service-connected frozen feet residuals were
directly involved in the veteran's death. Moreover, the
treatment records and examination reports associated with the
claims file do not provide a medical nexus between the
veteran's service-connected residuals of frozen feet and the
development of cardiomyopathy, chronic obstructive lung
disease, or congestive heart failure, the underlying causes
of the veteran's death.
In essence, the only evidence supporting the proposition that
the veteran's service-connected frozen feet residuals were
connected to his death are statements from the appellant
herself. The appellant does not possess the technical or
specialized knowledge to provide a probative medical
conclusion with respect to whether the veteran's service-
connected disability led to his death. See Cromley v. Brown,
7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet.
App. 492, 494-5 (1992). The appellant has not submitted any
other medical opinion to support her contentions.
Further, there is no competent medical evidence of record
which establishes that the veteran's service-connected
disability led to the development of circulation problems
which caused the veteran's death. The medical evidence
establishes that the veteran had peripheral vascular disease.
However, there is no evidence that this disorder was caused
by the service-connected trench foot or was otherwise related
to service. Furthermore, the Board points out that there
is no competent medical evidence that establishes that the
peripheral vascular disease caused the veteran's death.
The Board also points out that there is a The March 1996 VA
examination report indicates that there is no relationship.
VA medical opinion dated in March 1999 which establishes that
there is no relationship between the veteran's frostbite of
the feet in service and the cause of the veteran's death.
The VA physician indicated that the veteran's death was due
to complications of chronic obstructive pulmonary disease.
The VA physician further stated that even if the veteran had
decreased circulation in his injured service-connected leg,
it would not be related to his death which was due to
respiratory failure, congestive heart failure, chronic
obstructive pulmonary disease, chronic bronchitis, and
history of smoking. Review of the record further reveals
that there is evidence of record which establishes the
veteran's alcoholism led to the development of cardiomyopathy
and congestive heart failure.
There is no competent medical evidence of record which
establishes that the veteran's chronic obstructive pulmonary
disease, congestive heart failure or cardiomyopathy, the
underlying causes of the veteran's death, manifested in
service or that the cardiovascular disorders manifested
within one year from service separation in March 1949.
Service medical records are silent for a diagnosis of a
pulmonary or cardiovascular disorder. The medical evidence
of record establishes that chronic obstructive pulmonary
disease was diagnosed in November 1983, which was
approximately 34 years after service separation. Ischemic
heart disease with early myopathy was diagnosed in 1988,
approximately 39 years after service separation.
The appellant also argues, in essence, that the veteran's
death was caused by smoking and that such is related to his
period of service. The Board notes that there is competent
medical evidence of record which establishes that the
veteran's history of smoking contributed to his cause of
death. The March 1999 medical opinion by Dr. T. indicates
that the veteran died of complications of chronic obstructive
pulmonary disease secondary to smoking. Dr. T. also stated
that the veteran's death was related to the veteran's history
of smoking since the 1950's, in addition to the respiratory
failure, congestive heart failure, chronic obstructive
pulmonary disease, and chronic bronchitis.
As discussed above, 38 U.S.C.A. § 1103 prohibits service
connection of death or disability on the basis that it
resulted from disease or injury attributable to the use of
tobacco products during the veteran's active service. This
section is applicable to claims filed after June 9, 1998.
The appellant's claim for entitlement to service connection
for the cause of the veteran's death was received by the RO
on July 20, 1998. Therefore, because the appellant filed her
claim after June 9, 1998, service connection of death or
disability on the basis that it resulted from disease or
injury attributable to the use of tobacco products during the
veteran's active service is prohibited by law.
Section 1103 does contain an exception. Service connection
for disease or injury which became manifest during service or
during an applicable presumptive period is not precluded. In
this case, there is no competent medical evidence which
establishes that any of the veteran's causes of death first
manifested in service or that his cardiovascular disorders
manifested within one year from service separation. This
includes nicotine dependence, which was first mentioned in
1992, many decades after service.
The Board notes in passing that even if the law as it existed
before June 9, 1998 was applied [and for reasons stated above
the Board does not believe that it applies], the outcome
would be the same. There is no competent medical evidence
which establishes a nexus between the veteran's nicotine
dependence and his service. See, in general, Davis v. West,
13 Vet. App. 178, 183 (1999). The veteran, during his
lifetime, made such contentions but as stated above as a lay
person he was not competent to opine on medical maters. See
Espiritu, supra.
In summary, because the appellant has not submitted competent
medical evidence of a nexus between the veteran's death and
his service or his service-connected disability, the Board
finds that the appellant has failed to present a well-
grounded claim of entitlement to service connection for the
cause of the veteran's death. Accordingly, the appellant's
claim is denied.
Additional Matters
When a claim is not well grounded, the VA does not have a
duty to assist the claimant in the development of facts
pertaining to his claim. Gilbert v. Derwinski, 1 Vet. App.
49, 55 (1990). However, the VA may be obligated to advise
the claimant of the evidence needed to complete the
application. This obligation depends upon the particular
facts of the case and the extent to which the VA has
previously advised the claimant of the evidence needed to be
submitted with a VA benefits claim. Robinette v. Brown, 8
Vet. App. 69 (1995).
VA is not on notice of any other known or existing evidence
that would make the adjudicated service connection claim
plausible. This decision serves to inform the appellant of
the kind of evidence that would be necessary to make her
claim well grounded. By this decision, the Board informs the
appellant that she will need to submit competent medical
evidence of a nexus between the cause of the veteran's death
and his service.
Entitlement to Educational Benefits
Pertinent Law and Regulations
For the purposes of dependents' educational assistance under
38 U.S.C.A. Chapter 35, the child or surviving spouse of a
veteran will have basic eligibility for benefits if the
veteran was discharged from service under other than
dishonorable, or died in service; and has a permanent total
service-connected disability or a permanent total service-
connected disability was in existence at the date of the
veteran's death; or the veteran died as a result of a
service-connected disability. 38 C.F.R. § 3.807(a) (1999).
Analysis
In this case, the evidence of record shows that at the time
of the veteran's death, he did not have a permanent total
service-connected disability. The record shows that service
connection was in effect for trench foot as a residual of
frozen feet, which was assigned a 50 percent disability
rating. That was the veteran's only service-connected
disability. Furthermore, as discussed above, a service-
connected disability did not cause the veteran's death.
Accordingly, the Board finds that the appellant has not met
the conditions for eligibility for dependents' educational
assistance under 38 U.S.C.A. Chapter 35. The Board finds
that the appellant's claim is without legal merit; thus, it
must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).
ORDER
A well-grounded claim having not been presented, the
appellant's claim of entitlement to service connection for
the cause of the veteran's death is denied.
Entitlement to dependents' educational assistance under
38 U.S.C.A. Chapter 35 is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals